Before
the Court are Rule 12(b)(1) and Rule 12(b)(6) Motions to
Dismiss, filed by Defendant Wal-Mart Louisiana, LLC
(“Wal-Mart”). (Doc. 30). Pro se Plaintiff Althie
J. Boyd (“Boyd”) filed an untimely response.
(Doc. 39). Wal-Mart's 12(b)(1) Motion to Dismiss (Doc.
30) should be denied because the limitations period for
Boyd's claims is not a jurisdictional requirement, but
rather a statutory precondition to filing suit. Because
Boyd's claims are time-barred, however, Wal-Mart's
12(b)(6) Motion to Dismiss (Doc. 30) should be granted.

Boyd
claims she switched departments from an overnight stocker to
daytime stocker. (Doc. 1). Boyd alleges she reported a
previous work related injury to the store manager, Bradley
Ratcliff, and was assured she would not have to unload
trucks. (Doc. 1). Boyd claims that when she reported to the
position, she was told by co-manager Mike Thompson and
assistant manager Latonya Armstrong that she had to unload
trucks. (Doc. 1). Boyd alleges she found that difficult, and
had a brief meeting with district manager “Aziz”
and human resource manager “Zoerene.” (Doc. 1).

Boyd
alleges she was sent to her physician, who imposed a 15-pound
lifting restriction. (Doc. 1). She claims she returned to
work on October 29, 2015, and was told her request for
accommodation had been denied. (Doc. 1). Boyd further claims
she was “banned from the time clock” and was
required to leave the building. (Doc. 1).

Boyd
states that on October 30, 2015, she was told by personnel
manager Pat Stroud that there was nothing available at the
Pineville store and to check other regions. (Doc. 1). Boyd
claims she was also told she was not needed because she was
“too much of a problem.” (Doc. 1). Boyd avers she
did not hear anything further from the store manager, and
subsequently she resigned. (Doc. 1).

Boyd
also claims “Aziz” attempted to punch her during
their group meeting. Boyd further claims she has been stalked
and harassed by someone “setting up a time for Wal-Mart
truck drivers to meet” her at Rapides Station. (Doc.
1).

Boyd
seeks punitive damages for a lapsed life insurance policy,
for fraud for use of her payroll issued debit card, and for
child support arrears. Boyd also alleges lower back injury.
(Doc. 1). She seeks monetary damages for embarrassment,
humiliation, emotional distress, mental anguish, and pain and
suffering from 2010 to present. (Doc. 1).

Wal-Mart
responded with Rule 12(b)(1) and Rule 12(b)(6) Motions to
Dismiss Complaint (Doc. 30), seeking dismissal of Boyd's
Complaint for lack of subject matter jurisdiction,
untimeliness, and for failure to state a claim. In support,
Wal-Mart attached Boyd's charge of discrimination and
right to sue letter. (Doc. 38). Boyd did not timely oppose,
instead filing a late response arguing that it would be
unfair to dismiss her case without her having legal
representation. (Doc. 39).

II.
Law and Analysis

A.
Standards governing the 12(b)(1) Motion to
Dismiss

Motions
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the subject matter
jurisdiction of the district court to hear a case.
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001). “A motion to dismiss for lack of
subject-matter jurisdiction should only be granted if it
appears certain that the plaintiff cannot prove any set of
facts in support of his claims entitling him to
relief.” In re FEMA Trailer Formaldehyde Products
Liab. Litig. (MississippiPlaintiffs), 668 F.3d
281, 287 (5th Cir. 2012). “Plaintiffs bear the burden
of establishing subject-matter jurisdiction.”
Id.

The
standard for review of a motion to dismiss under Rule
12(b)(1) is the same as that for a motion to dismiss under
Rule 12(b)(6). Harrison v. Safeco Ins. Co. of
America, 2007 WL 1244268, at *3 (E.D. La.
2007).[2]

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